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Court Rejects Suit Over Sale of Student Information by ACT, College Board

A federal appeals court has tossed out a lawsuit filed against ACT Inc. and the College Board over the sale of admissions test-takers' personal information to colleges and other education organizations.

The key fact in the case seems to be that the organizations, which publish the ACT and SAT exams, respectively, only sell the "personally identifiable information" of test-takers who authorize such disclosures. The information included can include a test-taker's name, address, gender, high school, email address, racial or ethnic background, and intended college major.

The purchasers of the lists include higher education institutions, scholarship organizations, and the military.

A group of four past test-takers who evidently checked "yes" for the disclosure of their information sued ACT and the College Board last year in a putative class action, meaning they were seeking court approval to represent all potential plaintiffs in the same category.

The suit claimed the test organizations sold the personal information for a profit of at least 33 cents per test-taker, per buyer. The suit cited various claims, including deceptive business practices, breach of contract, invasion of privacy, and unjust enrichment.

A federal district court threw out the lawsuit, and in its Nov. 18 decision in Silha v. ACT Inc., a three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, upheld the dismissal.

Both courts found that the test-takers had no case because they had suffered no legal injuries.

"As part of the information exchange program, plaintiffs consented to and affirmatively authorized defendants to 'send' or 'share' certain [personally identifiable information] with participating educational organizations in order to receive information about colleges, universities, scholarships, and other educational opportunities," the 7th Circuit court said. "The fact that defendants allegedly collected a fee from participating educational organizations and did not disclose this sale did not make plaintiffs worse off."

The court said the plaintiffs could not show that the test organizations' profiting from their information deprived them of any economic value of that information.

"In other words, plaintiffs have claimed injury based solely on a gain to defendants and without alleging a loss to themselves," the court said.

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